DATED 12TH APRIL 2000
WARDELL SECURITY LIMITED
(IN ADMINISTRATION)
(1)
CHARLES CHRISTOPHER STEWART MACMILLAN
and
DERMOT JUSTIN POWER
(2)
AND
EURO TELECOM CORPORATION LIMITED
(3)
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AGREEMENT
FOR THE SALE OF ASSETS
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<PAGE>
CONTENTS
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Clause Heading Page
1 Definitions 2
2 Sale and Purchase 4
3 The Consideration 4
4 Completion 5
5 Excluded Assets 6
6 Continuing the Business 7
7 The Name 8
8 Accounting for the Debts 8
9 Records etc 9
10 Exclusion of Warranties 9
11 Exclusion of Personal Liability 10
12 Employees 11
13 Apportionment 12
14 General 12
15 Waiver 13
16 Provisions to Survive Completion 14
17 Notices 14
18 Publicity 15
19 Counterparts 15
<PAGE>
THIS AGREEMENT is made on 12th April 2000.
BETWEEN:
(1) WARDELL SECURITY LIMITED (No. 2439972) whose registered office is at
3rd Floor Peter House St Peter's Square Manchester Ml 5AB ("THE
VENDOR") acting by the Administrators (as hereinafter defined);
(2) CHARLES CHRISTOPHER STEWART MACMILLAN and DERMOT JUSTIN POWER both of
BDO Stoy Hayward CR1 Peter House St Peter's Square Manchester Ml SAB
(together "the Administrators");
(3) EURO TELECOM CORPORATION LIMITED (No. 03184949) whose registered office
is at Robinson Linell Embankment House Acorn Business Park Woodseats
Close Sheffield South Yorkshire 58 0TB ("THE PURCHASER");
WHEREAS:
(A) By an Administration Order ("THE ADMINISTRATION ORDER") in the High
Court of Justice Chancery Division Manchester District Registry dated
31st January 2000 ("THE APPOINTMENT") in proceedings, the short title
and reference to the record of which is AO No. 1043 of 2000 In The
Matter of Wardell Security Limited, Charles Christopher Stewart
MacMillan and Dermot Justin Power ("THE ADMINISTRATORS") were appointed
Joint Administrators of the Vendor.
<PAGE>
(C) The Vendor acting by the Administrators has agreed to sell and the
Purchaser has agreed to purchase the Vendor's business and certain of
its assets upon the terms and subject to the conditions set out in this
Agreement.
IT IS HEREBY AGREED:
DEFINITIONS
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1.1 In this Agreement unless the context otherwise requires the following
words and expressions shall have the following meanings:
"ADMINISTRATORS' SOLICITORS" means Addleshaw Booth & Co of 100
Barbirolli Square Manchester M2 3AB (Ref OABA\KJD\101743-94);
"ASSETS" means the Contracts and the Goodwill;
"BUSINESS" means the business of providing security services carried on
by the Vendor at the Property at the Transfer Date;
"COMPLETION" means the completion of the sale and purchase hereby
agreed;
"CONTRACTS" means the benefit and burden of all contracts and
engagements entered into and of all orders placed by or with the Vendor
or the Administrators on behalf of the Vendor in relation to the
Business subsisting but uncompleted on the Transfer Date insofar as the
same are capable of being assigned;
"DEBTS" means the book and other debts and monetary claims owing to the
Vendor as at the Transfer Date whether or not in respect of the
Business and whether or not yet due or payable or invoiced
<PAGE>
"EXCLUDED ASSETS" means the property rights and assets of or used by
the Vendor which are not expressly sold pursuant to this Agreement
including but not limited to those set out in clause 5;
"GOODWILL" means the goodwill of the Vendor in connection with the
Business comprising:
(a) exclusive liberty for the Purchaser to represent itself as
carrying on the Business in succession to the Vendor together
with the non-exclusive right (so far as the Vendor may
lawfully grant the same) to use the Name as a trading name;
(b) liberty to negotiate to take up all orders and enquiries
relating to the Business which have not been accepted by the
Vendor as at the date hereof
(c) liberty to use all customer lists and (in so far as not
referring to the Vendor and not referring to the rights or
property of any other person).
"NAME" means the words "Wardell Security";
"PROPERTY' means the properties situated at Bay 11 Appleton Thorn
Trading Estate Warrington and Part 8th Floor North Wing Trafford House
Chester Road Manchester;
"RECORDS" means the Trading Records and the Statutory Books;
"REGULATIONS" means the Transfer of Undertakings (Protection of
Employment) Regulations 1981;
"STATUTORY BOOKS' means the books and records which the Vendor is
required to maintain under the Companies Act 1985;
<PAGE>
"TRADING RECORDS" means the accounts, purchase and sale records, lists
of orders and other books and records of the Vendor (other than the
Statutory Books) used in the carrying on of the Business;
"TRANSFER DATE" means the time of Completion as provided in clause 4.1.
1.2 References to statutory provisions shall be deemed to include all
orders, regulations, statutory instruments and similar matter made in
connection therewith or pursuant thereto as well as any modification or
re-enactment thereof for the time being in force and shall be deemed to
include such provisions of earlier legislation (as from time to time
amended) which have been re-enacted (with or without modification) or
replaced (directly or indirectly) by such Act of Parliament Treaty or
provision;
1.3 References to a living person shall if the context so permits extend to
his personal representatives and be enforceable accordingly;
1.4 Section 61 Law of Property Act 1925 shall apply to this Agreement;
1.5 The headings herein are for ease of reference and shall not affect
construction;
1.6 References to Recitals, Clauses and Schedules are to be construed as
references to the recitals and clauses of, and schedules to, this
Agreement.
2 SALE AND PURCHASE
-----------------
2.1 The Vendor shall sell and the Purchaser shall purchase whatever right,
title and interest (if any) the Vendor may have in the Assets subject
to all liens, obligations, licences and encumbrances relating thereto
on the terms and for the consideration set out in this Agreement.
<PAGE>
3 THE CONSIDERATION
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3.1 The aggregate consideration for the sales and purchases of the Assets
shall be the sum of(pound)125,000 plus Value Added Tax (if any).
3.2 Subject to clauses 3.3, and 3.4 of this clause the Purchaser shall not
pay any Value Added Tax upon the consideration referred to in clause
3.1 the parties being of the view that this is a transaction which by
virtue of paragraph 12 Value Added Tax (Special Provisions) Order 1995
SI. No.1995/1268 is not to be treated as either a supply of goods or a
supply of services;
3.3 If and to the extent to which all or any of the Assets are for any
reason subject to Value Added Tax then the Purchaser shall against
receipt of a Value Added Tax invoice pay to the Administrators on
behalf of the Vendor forthwith on demand the Value Added Tax due
relative to such sale together with all interest and penalties which
may be payable thereon; and
3.4 The Purchaser undertakes and warrants that it is registered or will as
a result of this transaction become registerable for Value Added Tax
purposes and that it intends to use the Assets to carry on with effect
from the Transfer Date the same kind of business as the Business.
3.5 The Purchaser shall be solely responsible for all stamp duty payable on
this Agreement or arising out of it.
4 COMPLETION
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4.1 Completion shall take place at the offices of the Administrators
Solicitors immediately after exchange of this Agreement when:
(a) the Purchaser shall pay to the Administrators on behalf of the
Vendor the sum of (pound)125,000 being the monetary
consideration for the sale and purchase of the Assets;
(b) the Vendor shall leave at the Property all such items of the
Assets as are transferable by delivery; and
(c) neither the Vendor nor the Administrators shall have any
obligation to the Purchaser to identify or deliver any such
items of the Assets to the Purchaser or to take any positive
steps whatsoever (including but not limited to seeking or
obtaining any requisite consent of any person not party
hereto) relating thereto to the enable the Purchaser to obtain
the same.
5 EXCLUDED ASSETS
---------------
5.1 It is agreed and declared (for the avoidance of doubt) that any assets
or items owned by or in the possession of the Vendor other than the
Assets are excluded from the sale under this Agreement. In particular
but without prejudice to the generality of the foregoing the following
assets or items owned by or in the possession of the Vendor are amongst
the Excluded Assets:
(a) The Debts and all guarantees, indemnities, securities, rights
of retention of title and liens for the same;
(b) All deposits, prepayments, cheques, bills, notes or securities
received by the Vendor or the Administrators on behalf of the
Vendor on or before the Transfer Date and any cash in hand and
at bank;
(c) Any claim or potential claim under any insurance arising from
any act occurring on or before the date hereof;
(d) Any interest of the Vendor in any freehold or leasehold
property;
(e) The Statutory Books and the Trading Records;
<PAGE>
(f) The interest of the Vendor in any motor vehicles or other
chattel assets;
(g) The benefit of all agreements which are not assignable or of
which a purported assignment would be a breach or would
constitute an event of default or termination;
(h) All investments in shares or securities of the Vendor
(including shares and securities and other rights of
whatsoever nature of the Vendor in subsidiaries (if any) and
all moneys from time to time owing to the Vendor from such
subsidiaries);
(i) Any interest the Vendor may have in or to any pension fund(s);
(j) All computer software (if any) of the Vendor;
(k) Any third party items;
(l) All other items or assets of the Vendor not specifically
mentioned in clause 2 of this Agreement.
6 CONTINUING THE BUSINESS
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6.1 The Purchaser hereby undertakes with the Vendor and the Administrators
at the Purchasers expense:
6.2
(a) to complete in a proper and workmanlike manner and meet all
liabilities in connection with the Contracts and to indemnify
the Vendor and the Administrators and their respective estates
and effects against all, obligations, liabilities, actions,
proceedings, costs, expenses, claims, demands, losses and
outgoings of whatsoever nature or description arising out of
or by virtue of the Contracts or of any breach or
non-observance by the Purchaser of the Vendor's obligations
under the Contracts or of the Purchaser's obligations under
this Agreement;
<PAGE>
(b) To keep the Vendor and the Administrators and their respective
estates and effects fully indemnified against all losses
proceedings claims liabilities costs and expenses whatsoever
in respect of any act omission neglect or default by the
Purchaser in connection with the Property the Business or the
Assets or any of them or in respect of the use of the Assets
or any of them.
7 THE NAME
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7.1 Without compulsion on the Vendor or the Administrators to change the
name of the Vendor it is hereby agreed that neither the Vendor nor the
Administrators shall object to the use by the Purchaser of the Name as
or in a trading name of the Purchaser.
8 ACCOUNTING FOR THE DEBTS
------------------------
8.1 The Purchaser undertakes forthwith to pay over to the Administrators
all monies received by it due to the Vendor or the Administrators. The
Purchaser acknowledges that all such monies are received by it as
trustee for the Vendor and that if for any reason it is not possible to
pay any such monies direct to the Administrators then such monies shall
be paid by the Purchaser into a separate bank account; and
8.2 For the avoidance of doubt the Purchaser acknowledges that:-
(a) all monies received by the Purchaser on or after the Transfer
Date which shall not have been attributed by a payer either to
the Debts or the Purchaser's debts shall be attributed to the
Debts; and
(b) all moneys owing to the Vendor for goods delivered or services
provided and/or invoiced to any customer of the Business on or
before the Transfer Date shall continue to belong to the
Vendor and the Purchaser shall not be entitled to recover from
the Vendor or the Administrators any deposits or payments by
customers prior to the Transfer Date.
<PAGE>
9 RECORDS ETC
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9.1 If the Vendor shall leave any of the Records or any books, files or
other documents not included in this sale in the possession of the
Purchaser then the Purchaser hereby acknowledges and agrees that they
are the property of the Vendor and will not be removed from the
possession of the Purchaser and the Purchaser permits the Vendor and/or
the Administrators and their respective servants and agents access to
such Records, books, files or other documents in order to inspect deal
with or remove the same.
10 EXCLUSION OF WARRANTIES
-----------------------
10.1 The Purchaser admits that the Purchaser has inspected and made all
investigations it wishes concerning the Assets and that the Purchaser
enters into this Agreement solely as a result of that inspection and
investigation and on the basis of the terms of this Agreement and not
in reliance upon representations or warranties whether written or oral
express or implied made by or on behalf of the Vendor or the
Administrators or their employees or any agents or representatives
thereof or any of them;
10.2 No warranty or representation on the part of the Vendor or the
Administrators or their staff or any agents or representatives thereof
or any of them as to the title, state, quality, quantity, description
or fitness of the Assets or any of them is given or to be implied by
this Agreement nor by anything said or written by or on behalf of the
Vendor or the Administrators or their staff or any agents or
representatives thereof or any of them either before during or
subsequent to the negotiations between the parties hereto;
10.3 So far as it is permissible by law to do so any statutory or common law
warranties, representations guarantees or conditions that might
otherwise be implied as to the title, state, quality, quantity
description or fitness of the Assets or any of them are hereby
expressly excluded;
<PAGE>
10.4 The Purchaser acknowledges that it has satisfied itself, or has had the
opportunity of satisfying itself as to the accuracy of the schedules to
this Agreement and that no error or omission as to the title, state,
quality, quantity, description or fitness of the Assets or any of them
shall invalidate this sale and purchase or be the subject of any claim
by the Purchaser; and
10.5 Each of the sub-clauses hereinbefore contained shall be construed
separately.
11 EXCLUSION OF PERSONAL LIABILITY
-------------------------------
11.1 The Administrators are party to this Agreement solely for the purpose
of receiving the benefit of the indemnities exclusions and other
provisions in their favour herein contained. Notwithstanding that the
negotiation for this Agreement may have been conducted and that the
same (and/or any other agreement or document referred to herein or
connected herewith) may have been executed by the Administrators (or
one of them or a member of their staff) whether for and on behalf of
the Vendor or otherwise it is hereby expressly agreed and declared that
no personal liability under or in connection with this Agreement (or
any such other agreement or document) shall fall upon the
Administrators or either of them or any member of their staff nor shall
any liability of the Vendor hereunder rank as an expense of the
Administration;
11.2 Insofar (if at all) as the Purchaser is or becomes a creditor of the
Vendor the Purchaser will not set off or attempt to set off any monies
owing to it by the Vendor against all or any of the purchase price or
other monies payable under the terms of this Agreement.
12 EMPLOYEES
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For the avoidance of any doubt and notwithstanding any other provision of this
Agreement the Purchaser acknowledges and agrees that:
12.1 this Agreement and the transfer of the undertaking and assets of the
Business effected hereby are governed by the Regulations and that the
Purchaser shall be solely responsible for all claims by and liabilities
to every employee referred to in clause 12.2
12.2 in accordance with the Regulations the contracts of employment of each
employee of the Vendor engaged in the Business shall be automatically
transferred to the Purchaser with effect at the latest from the
Transfer Date
12.3 if for any reason the Regulations do not effect the automatic transfer
to the Purchaser of the contract of employment of any employee of the
Vendor in the Business that employee shall be deemed to have been
dismissed by the Vendor at the Transfer Date and re-engaged by the
Purchaser with effect therefrom and the Purchaser shall be solely
responsible for all claims by and liabilities to every such employee
12.4 neither the Vendor nor the Administrators shall have under or in
connection with this Agreement or any document transaction or matter
referred to herein or therein any liability to the Purchaser directly
or indirectly relating to:
(a) the Vendor and/or the Administrators for any reason or at any
particular time or at all not having terminated or not having
been able to terminate by reason of redundancy or otherwise
the contracts of employment of some or all of the Vendor's
employees or former employees
(b) the Purchaser for any reason being or becoming actually or
potentially liable for any redundancy or compensatory or other
contribution, benefit or other payment(s) to or in respect of
any employee or former employee of the Vendor or of any other
employer and/or the Purchaser being or becoming the employer
of any such person
<PAGE>
13 APPOINTMENT
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13.1 There shall be no appointments as between the Vendor, the
Administrators and the Purchaser or any third party of any outgoings of
any nature in respect of the Business or any of the Assets or the
Property.
14 GENERAL
-------
14.1 All payments to be made or procured and all indemnities to be afforded
by the Purchaser to the Vendor or to any other person under or in
connection with this Agreement shall be liable to be paid or afforded
or procured to be paid or afforded without assertion of any lien equity
set-off or counterclaim whatsoever by or on behalf of the Purchaser and
all such payments hereunder to the Vendor shall be effected by the
payment of cleared sterling funds.
14.2 It is agreed by the Purchaser that the terms and conditions of this
Agreement and the exclusions and limitations herein contained are fair
and reasonable in the context of a sale of the assets of a company in
administration bearing in mind:
(a) that the Purchaser agrees and acknowledges that it has entered
into this Agreement on the basis that the Assets, and the
respective titles thereto are sold in their present state and
condition and that the Purchaser must rely and has relied upon
its own opinion and professional advice in relation to the
assets the said titles thereto and to the terms of this
Agreement the Purchaser and its professional advisers having
been given the opportunity to inspect the same; and
(b) that the consideration payable hereunder has been agreed on
the basis that it takes into account the risk to the Purchaser
represented by the fact that all the parties believe the said
terms and conditions, exclusions and limitations will be
recognised as fully effective by the Court;
14.3 This document shall be governed by and be construed in accordance with
English Law and the parties submit to the jurisdiction of the English
Courts;
<PAGE>
14.4 In the event that any clause of this Agreement shall be held to be
unenforceable by any Court of Competent Jurisdiction the same shall
cease to be binding on the parties but the remaining provisions of this
Agreement shall continue in full force and effect;
14.5 This Agreement and the documents to be entered into pursuant to its
terms together represent the entire agreement between the parties with
regard to their subject matter;
14.6 It is agreed and declared by the parties hereto that this Agreement and
the terms hereof are not intended expressly or impliedly to confer on
any third party any rights pursuant to the provisions of the Contracts
(Rights of Third Parties) Act 1999 save in relation to the
Administrators' partners firm employees agents and representatives as
referred to in this Agreement.
15 Waiver
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15.1 No failure to exercise and no delay in exercising on the part of the
Vendor or the Administrators any right power or privilege hereunder
shall operate as a waiver thereof nor shall any single or partial
exercise of any such right, power or privilege preclude any further or
other exercise thereof or the exercise of any other right, power or
privilege.
16 PROVISIONS TO SURVIVE COMPLETION
--------------------------------
16.1 All the provisions of this Agreement shall so far as they are capable
of being performed and observed remain in hill force and effect
notwithstanding completion of any part of this Agreement except in
respect of those matters then already performed.
<PAGE>
17 Notice
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17.1 Any notice or demand to be made hereunder shall be made in writing in
the English language and may be served at the address of the relevant
party shown at the commencement of this Agreement or in the case of a
company at the registered office for the time being of the company to
be served or to such other address in England as the person to be
served may have notified in substitution for such address or registered
office;
17.2 Service may be effected either by hand delivery, facsimile or by first
class post. If affected by delivery by hand service shall be deemed to
have taken place on delivery. If delivery by facsimile, service shall
be deemed to have taken place upon transmission and if effected by
first class post, service shall be deemed to have taken place at noon
on the business day following posting.
17.3 In proving service by first class post, it shall be sufficient to prove
that an envelope correctly addressed and duly stamped containing the
item(s) to be served was duly placed into the post; and
17.4 The Vendor hereby gives notice for the purposes of clause 17.1 above
that any such notice or demand to be served upon it should be sewed at
the offices of the Administrators' Solicitors marked `For the immediate
attention of Ged Barnes" rather than to its registered office.
18 PUBLICITY
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18.1 Save as required by law the Purchaser shall not divulge to any third
party (except its professional advisers who shall also keep the same
confidential) any information regarding the existence or subject matter
of this Agreement without the prior written consent of the
Administrators.
<PAGE>
19 COUNTERPARTS
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19.1 This Agreement may be executed in any number of counterparts and this
shall have the same effect as if the signatures on the counterparts
were on a single copy of this Agreement.
AS WITNESS the hands of the parties hereto or their duly authorised agents or
attorneys the day and year first before written.
SIGNED by C C S MACMILLAN
as Joint Administrative Receiver acting
without personal liability for and on behalf
of WARDELL SECURITY LIMITED
in the presence of:
Witness
Signature
Name
Address
Occupation
SIGNED by C C S MACMILLAN on
behalf of himself and D J POWER
in the presence of
Witness
Signature
Name
Address
Occupation
